Director of Public Prosecutions v Nikollaj

[2019] VCC 774

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01093

DIRECTOR OF PUBLIC PROSECUTIONS

v

STEFAN NIKOLLAJ

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	22 May 2019
DATE OF SENTENCE:	30 May 2019
CASE MAY BE CITED AS:	DPP v Nikollaj
MEDIUM NEUTRAL CITATION:	[2019] VCC 774

REASONS FOR SENTENCE

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Subject:CRIMINAL LAW      

Catchwords:  Plea of guilty plea following sentence indication hearing – cultivation of narcotic plant, namely cannabis L –  cultivation simpliciter – not commercial cultivation – 47 plants with a total weight of 26.176kg – sophisticated hydroponic set up with three rooms established to grow cannabis together with electrical bypass – offender was a crop sitter.  

Legislation Cited:  Drugs, Poisons and Controlled Substances Act 1981 (Vic), Metropolitan Fire Brigades Act 1958 (Vic), Sentencing Act 1991 (Vic)

Cases Cited:Williams v The Queen [2018] VSCA 171

Sentence:Community Correction Order for a period of 2 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Hancock	Office of Public Prosecutions
For the Accused	Mr M. McGrath	Giorgiannni & Liang Lawyers

HIS HONOUR: 

Introduction

1Stefan Nikollaj, you have pleaded guilty to one charge of cultivation of a narcotic plant, namely cannabis L, contrary to s72B of the Drugs, Poisons and Controlled Substances Act 1981. It carries a maximum penalty of 15 years imprisonment.

Circumstances of the offending

2The prosecution opening was tendered on the plea and may be summarised as follows:

3On Saturday 16 April 2016 at approximately 8:13 pm, a call was made to the Metropolitan Fire Brigade (MFB) via 000, that the caller could see electrical sparks originating from inside the premises situated at 458 Barry Road, Coolaroo. 

4Members from the MFB attended a short time later and entered the premises under s32D of the Metropolitan Fire Brigades Act 1958, where an electrical bypass was found, as well as three rooms set up in a manner consistent with the hydroponic cultivation of cannabis. The exterior of the property was cordoned off and secured by police.

5At approximately 10.10 am on Sunday 17 April 2016, a search warrant issued pursuant to s81 of the Drugs, Poisons and Controlled Substances Act 1981, by police at the premises. During a search of the premises, police located and seized the following property:

·47 green coloured plants and three plant stems at various stages of growth;

·A Jetstar baggage receipt for Flight JQ 513, dated 7 July 2015, bearing your name attached to a blue coloured Hunter brand suitcase located in the laundry of the premises; 

·A letter dated 23 August 2015 from Dr Akhter Hossain, referring you for further treatment;

·A cigarette butt;

·A pair of black coloured latex gloves; and

·A Heineken brand beer bottle, which was later swabbed by a crime scene officer.

6On 9 March 2017, you voluntarily attended at the Fawkner Police Station.  You were placed under arrest by Detective Senior Constable Hartwig and a recorded interview was conducted, commencing at approximately 9.16 am.  You indicated during the interview that you did not wish to discuss or be interviewed in relation to the alleged offending, however you consensually provided police with a sample of your DNA through a buccal swab. 

7On 29 April 2016, Forensic Officer Kylie Slattery of Victoria Police Forensic Services Centre, examined the plants and found them to be green cannabis L plants, 47 in total number.  The total weight of the plants was 26.176 kilograms, excluding roots. 

8On 3 November 2016, the Victoria Police Biological Science Group received the evidentiary samples, being the cigarette butt, the two black Latex gloves and the swabs taken from the Heineken bottle. 

9On 15 June 2017, Victoria Police Biological Science Group received your DNA reference sample. 

10On 2 March 2018, Forensic Officer, Kate Michelle Outtridge of Victoria Police Forensic Services Centre, provided the following opinions:

·The sample from the cigarette butt is 100 billion times more likely to be from you;

·The samples from the black latex gloves are 100 billion times more likely to be from you; and

·Two of the swabs taken from the Heineken beer bottle are 23,000 times more likely to be from you.

Objective seriousness of the offending

11The offence of cultivating of cannabis is a serious offence.  This is reflected by the maximum penalty of 15 years imprisonment.  However, it is an offence that can cover a wide variety of circumstances of seriousness.  Thus it may relate to a very small number of plants, or even a single plant. 

12In this instance, the house in Coolaroo clearly represented a sophisticated hydroponic set up, with three rooms established to grow cannabis, together with an electrical bypass. 

13The total number of cannabis plants found at the premises was 47 plants, with a total weight of 26.176 kilograms, the bulk of this weight from ten plants.  However, the evidence in this instance and the position of the prosecution, is that you were essentially a crop sitter and you are charged with cultivation relating to one day, being 16 April 2016.

14Further, there is no evidence that you had harvested any of the crop, nor is there evidence that you were in any way connected to the leasing of the property or the setup of the operation.  Nevertheless, you were connected to the property and an inference can safely be drawn that you became involved for some form of reward or payment.  Therefore, while you may be considered a minor player, you were involved in the cultivation of cannabis being produced in a sophisticated commercial operation.  That said, you fall to be sentenced as a crop sitter and that you are to be sentenced for cultivation simpliciter and not commercial cultivation. 

Personal circumstances

15You are 32 years of age and were 29 at the time of the offence.  You were raised in a close and supportive family and are one of five children.  You grew up in Sydney and left school at the end of year 10.  At school you were not a high achiever and struggled with maths and literacy. 

16Your parents separated, however, as I understand the situation, they continued to live under the same roof.  Currently your father is serving a term of imprisonment as a result of welfare fraud.  He was imprisoned in December 2018.  His earliest release date being April 2022.

17You were employed from the ages of 16 to 21 in a family business, which was a café in Parramatta.  Following that work, you worked in other areas of hospitality, including restaurants and other food outlets.  You worked as a painter and decorator for a period of time.  You then managed a carwash in the western suburbs of Sydney for about six years. 

18You moved to Melbourne in February 2016 with your family to a rented home in Queenscliff Road, Thomastown.  You found employment as a painter and decorator and then later in a carwash in Thomastown.  In early 2017, you moved to Sydney for a short period of time to work with an uncle in the construction industry.  It was while you were working in Sydney that police searched your property at Queenscliff Road, Thomastown in February 2017. 

19Since your arrest you have not worked and you currently reside with your mother and three of your siblings in a small house in Reservoir.  Your mother is not working, has a number of health issues, including a heart condition and high blood pressure.  As you have not been working, you have taken on more responsibilities in caring for your mother. 

20You have not suffered any mental health problems.  While I was told that you do not have any drug issues, you reported to the Community Corrections officer who assessed you that you have, in the past, abused cannabis.  Otherwise you have no other drug or alcohol issues.  You are physically fit and apart from the recent past, you have an excellent work history.

Sentencing considerations

21I take into account your plea of guilty in this matter.  The relevant history is that this matter came on for trial on 20 May 2019 and was in the reserve list.  While awaiting a trial judge, negotiations took place, ultimately culminating on 22 May 2019 with a sentencing indication application in relation to the charge that you have now pleaded guilty to.  As a result of that application, the plea was conducted in the afternoon of 22 May 2019. 

22While the plea of guilty is late, in my view, it still demonstrates your acceptance of responsibility and ultimately has avoided the need for a trial.  Your plea therefore has facilitated the course of justice and you are entitled to credit for that. 

23General deterrence is an important and relevant sentencing consideration in cases such as this.  While you are only charged with cultivation simpliciter, it is clear, as I have already noted, that this cannabis crop was a sophisticated hydroponic setup.  As such, there is no doubt that there are others involved operating at a much higher levels than you.  Further, these operations are unable to continue without the assistance of people like you who are recruited to be involved at many different levels and therefore a message needs to be sent that people who engage in cannabis cultivation at any level will face consequences. 

24As to specific deterrence, in my view, little weight should be afforded to that principle.  You have no prior convictions and I have been told that you have one pending matter in relation to a proceeds of crime charge in the Magistrates' Court, which is to be contested. 

25For the same reasons, when consideration is given to your prospects of rehabilitation, the fact that you are now aged 32 with no prior criminal history,
a supportive family and an excellent work history, in my view, points to
a conclusion that your prospects of rehabilitation are very good.

26Delay is of some relevance in this case.  The offending occurred more than three years ago.  I was told that it took over 12 months for the charge to be laid and then ultimately with the passage of time of the matter running through the committal and to trial, there has been a significant delay.  It was self-evident from the negotiations that you were in great fear of a custodial disposition. 
I accept that a period of delay of some three years, with the prospect of custody hanging over your head, is a matter that I am able to take into account.

27Mr Hancock, who appeared on behalf of the Director of Public Prosecutions submitted that while you are pleading to cultivation simpliciter, the charge still carries a 15 year maximum penalty.  Further, he submitted that the cultivation is in the context of a sophisticated commercial operation and as such, he submits that your offending falls towards the top end of a simpliciter charge. 
I agree. 

28Balancing all relevant sentencing considerations, in all the circumstances, in my view, a term of imprisonment is not called for in this instance, which
I conveyed at the sentencing indication hearing.  Rather, in my view, a community corrections order which combines both punitive and rehabilitative components is the appropriate disposition.

29While your offending is serious, I note the recent decision of Williams v The Queen[1], where the court consisting of Priest JA and Hargraves JA said, at paragraph 47:

'As was made clear in Boulton, in an appropriate case a CCO provides a flexible sentencing option, enabling punitive and rehabilitative purposes to be served simultaneously.  A CCO can be fashioned to address the particular circumstances of the offender and the causes of the offending, and to minimise the risk of re-offending by promoting the offender’s rehabilitation.  And although as the order of seriousness of offending conduct increases, the likelihood that such a disposition will be appropriate diminishes, a CCO may remain open, even in cases of very serious offending.'

[1]Williams v The Queen [2018] VSCA 171.

Sentence

30Mr Nikollaj, will you please stand.

31Stefan Nikollaj, on Charge 1, cultivation of a narcotic plant, you will be convicted and placed on a community correction order for a period of two years.

32The community corrections order will have both punitive and therapeutic components.  You will be required to complete 180 hours of community work and engage in programs to address drug use.  This was recommended by the Community Corrections officer, as the offence was drug-related and that you indicated to her that you have previously abused cannabis. 

33You will also be subject to a supervision condition. Pursuant to s.48CA of the Sentencing Act 1991, I direct that all of the hours that you satisfactorily complete, pursuant to the treatment and rehabilitation condition, may be credited as hours of unpaid community work.

34Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty, I would have sentence you to a period of six months' imprisonment, together with a community corrections order.

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